Apology Laws Foster Compassion

One of the most powerful risk management tools is the sincere apology to a resident and the “get well soon” card to an injured employee.

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5/21/2012

David A. Jones

Vice President, Lockton Companies

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​A profession charged with caring for the frailest members of society is a setting fraught with risk. Falls, skin breakdowns, elopements, and medication mismanagement are daily risks when caring for the aging. Claims from these exposures are inevitable. Furthermore, slips, trips and falls, and back injuries are common exposures for employees.

In the health care field, concerns about potential liability have stymied acknowledgement of medical errors or even an expression of sympathy. Fortunately, costly medical expenses and litigation following these unexpected events can be mitigated with one of the best risk management tools a provider can use: an expression of compassion and a genuine commitment to remedy the problems.

Encourage Compassion

Such an expression of compassion is statutorily protected and not an admission of liability, thanks to the so-called “I’m Sorry” laws, which have been adopted in 36 states.

“I’m Sorry” laws began as a movement in the medical industry after providers realized that being honest with patients and apologizing for mistakes when warranted is not only the right thing to do, but also financially sound.

“An apology helps change the tone of discussion. It changes the discussion from, ‘I want to punish you; I want to get as much money from you as I can,’ to a conversation about what the patient and family need,” says Doug Wojcieszak, founder of the Sorry Works! Coalition, an organization that promotes disclosure, apology, and upfront compensation when warranted.

“If there is fault,” Wojcieszak adds, “money will still exchange hands, but it’s not a lottery ticket.”

Today, apology laws help to protect expressions of sympathy, regret, and condolence from being used as an admission of guilt in subsequent litigation. However, experts have made two points clear:

There is a big difference between an apology and disclosure.

Be sure to check with the state medical association and legal counsel about how best to comply with each state’s apology laws.

California is one of 36 states that has a version of the apology law, which holds that apologies are inadmissible as evidence in court. However, “I’m sorry for what happened” is not the same as “I made a mistake,” and an admission of responsibility is admissible.

Staff Training Important

According to Wojcieszak, the current focus on politics and legislating apology laws should shift to adopting disclosure programs and staff training. Successful programs teach good event management, proactive post-event empathy and customer service, and no admission of error until it has been established after a thorough investigation.

“I have had many claims and risk mangers as well as actuaries personally tell me that the number of claims against their hospitals and insurers are dramatically improving because of disclosure,” says Wojcieszak.

Studies have shown that verbal compassion defuses anger, staves off lawsuits, and garners positive publicity. Furthermore, when a provider shows empathy and honesty, media reports tend to focus on the provider’s good will rather than the problem.

Providers that authentically embody a caring heart and attitude, and who have established apology policies, can significantly reduce reported claims and reduce litigation costs.

A 2006 study at the University of Michigan Health System reported that after introducing an apology and disclosure program in 2001, litigation costs decreased by as much as 50 percent and new litigation claims decreased by more than 40 percent in the five years that study results were collected (Boothman, RC, Blackwell AC, Campbell, DA, et al.).

Studies Back It Up

According to a more recent study of the 36 states with apology laws, cases involving the most severe injuries settled about 20 percent faster in states with apology laws, and average claim payments declined by $55,000 to $73,000 per case (Ho, B., Liu, E.).

These studies have also shown that payments in medical malpractice litigation are often higher if an error has not been disclosed and an apology given. A 2005 survey found that 99 percent of parents wanted physicians to tell them about an error involving their children, no matter the severity.

Although 36 percent indicated they were less likely to seek legal action if they were informed of the error by the physician, it is noteworthy that 63 percent of the parents stated that disclosure by the physician that a serious error had been committed would not change the likelihood of their decision to take legal action.

A Provider’s Positive Experience

Consider the experience of American Baptist Homes of the West: The organization’s corporate compliance plan is embraced by the entire organization and, with constant vigilance, has become a part of the group’s culture.

Read the rest of the story in an upcoming issue of Provider.

David A. Jones, vice president at Lockton Companies, the world’s largest, privately owned, independent insurance broker, has served as a risk and finance manager for various Fortune 500 companies. Jones holds an MBA and the following designations: Associate in Risk Management (ARM) and Chartered Property Casualty Underwriter (CPCU). He can be reached at: (805) 660-1182 or djones@lockton.com.

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